Sk. Md. Rafique vs Managing Committee, Contai Rahamania High Madrasah and Others

HELD : 1. Out of five incidents which constitute “the right to establish and administer” an educational institution as noted in *TMA Pai Foundation case, the right to admit students has not been considered to be an absolute and an unqualified right. The decision in **P.A. Inamdar case shows that in professional educational institutions or those imparting higher education, merit based selection has been taken to be in the interest of the nation and subserving and strengthening the national welfare. Selection of meritorious students has been accepted to be in the national interest. A minority institution cannot in the name of right under Article 30(1) of the Constitution, disregard merit or merit-based selection of students as regards professional and higher education. The right to take disciplinary action against the staff has also not been accepted to be an unqualified right. *TMA Pai Foundation case itself lays down that even in an unaided minority educational institution, a mechanism must be evolved and appropriate Tribunal must be constituted to consider the grievances and till then the Tribunals could be presided over by a judicial officer of the rank of a District Judge. Going by the decision *TMA Pai Foundation case so long as the principles laid down therein are satisfied, it is permissible if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions. [Para 45] [300-D-H; 301-A]

2. When it comes to the right to appoint teachers, in terms of law laid down in *TMA Pai Foundation case, a regulation framed in the national interest must necessarily apply to all institutions regardless whether they are run by majority or minority as the essence of Article 30(1) of the Constitution is to ensure equal treatment between the majority and minority institutions. An objection can certainly be raised if an unfavourable treatment is meted out to an educational institution established and administered by minority. But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing. [Para 46] [301-B-C]

3. The test accepted in *TMA Pai Foundation case, and the balance between two objectives can well be considered in the context of two categories of institutions; one imparting education which is directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority; while the second category of institutions could be those which are imparting what is commonly known as secular education. When it comes to the institutions in the former category, the teachers who believe in the religious ideology or in the special characteristics of the concerned minority would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate. But, if the subjects in the curriculum are purely secular in character, that, is to say, subjects like Arithmetic, Algebra, Physics, Chemistry or Geography, the intent must be to impart education availing the best possible teachers. In the first category, maximum latitude may be given to the managements of the concerned minority institutions as they would normally be considered to be the best judges of what would help them in protecting and preserving the heritage, culture, script or such special features or characteristics of the concerned minorities. However, when it comes to the second category of institutions, the governing criteria must be to see to it that the most conducive atmosphere is put in place where the institution achieves excellence and imparts best possible education. [Para 47] [301-D-H]

4. Regulations which will serve the interest of the students so also regulations which will serve the interest of the teachers are of paramount importance in good administration; that regulations in the interest of efficiency of teachers are necessary for preserving harmony amongst the institutions; and that the appointment of teachers is an important part in educational institutions. It is quite natural that qualitatively better teachers will ensure imparting of education of the highest standard and will help in achieving excellence. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff and would in turn depend inter alia on the quality of teachers. [Para 48] [302-A-C]

Ahmedabad St. Xavier’s College Society and Another v. State of Gujarat and Another (1974) 1 SCC 717 : [1975]

1 SCR 173 ; Frank Anthony Public School Employees’ Assoication v. Union of India and others (1986) 4 SCC

707 : [1987] 1 SCR 238 – followed.

5. Thus, if the intent is to achieve excellence in education, would it be enough if the concerned educational institutions were to employ teachers with minimum requisite qualifications in the name of exercise of Right under Article 30 of the Constitution, while better qualified teachers are available to impart education in the second category of institutions. For example, if the qualifying percentile index for a teacher to be appointed in an educational institution, considering his educational qualifications, experience and research, is required to be 50, and if teachers possessing qualifications far greater and higher than this basic index are available, will it be proper exercise for a minority educational institution to select teachers with lower index disregarding those who are better qualified? Will that subserve pursuit of excellence in education? One can understand if under the regulatory regime candidates who are otherwise less qualified are being nominated in the minority educational institution and the minority educational institution is forced to accept such less meritorious candidates in preference to better qualified candidates. In such cases, the minority educational institution can certainly be within its rights to agitate the issue and claim a right to choose better teachers. But if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice? The choice so exercised would not be in pursuit of excellence. Can such choice then be accepted? If the right u/Art. 30 is taken to be absolute and unqualified, then certainly such choice must be recognised and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria. Any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this Court. Further, if merit is not the sole and governing criteria, the minority institutions may lag behind the non-minority institutions rather than keep in step with them. [Para 49] [302-D-H; 303-A-B]

6. If the minority institution has a better candidate available than the one nominated under a regulatory regime, the institution would certainly be within its rights to reject the nomination made by the authorities but if the person nominated for imparting education is otherwise better qualified and suitable, any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such, any such rejection would not be within the true scope of the Right protected under Article 30(1) of the Constitution. [Para 50] [303-E-F]

7. In terms of Section 4 of the West Bengal Madrasah Service Commission Act, the Commission is to consist of a Chairman and four Members. The Chairman of the Commission has to be an eminent educationist having profound knowledge in Islamic Culture and must be well versed in education with teaching experience inter alia as a teacher of a University or as a Principal of a college, for a period of not less than twelve years. It is true that the latter part of Section 4(ii) speaks of an officer of the State Government not below the rank of Joint Secretary who could also be appointed as the Chairman of the Commission. Considering the nature of duties that the Chairman is to discharge, even an officer of the State Government has to be a person with profound knowledge in Islamic Culture. Apart from the Chairman, there are four Members who are to be appointed in terms of Section 4(iii) of the Commission Act. Out of these four Members, one has to be an eminent educationist having profound knowledge in Islamic Theology and Culture, while the other two Members must have teaching experience inter alia as a teacher of a University, or a Principal of a College for a period of not less than ten years. The fourth member could be a noneducationist, but he must have held the position of eminence in public life or in Legal or Administrative Service. Predominant composition of the Commission is thus of educationists and two of them have to be persons with profound knowledge in Islamic Culture and Islamic Theology. [Para 52] [303-G-H; 304-A-D]

8. The provisions of the Commission Act are thus specially designed for Madrasahs and Madrasah Education System in the State. Rule 8 of the West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for Appointment and Transfer to the Posts of Teaching and NonTeaching Staff) Rules, 2010 stipulates fair and transparent process of merit based selection and the statutory mechanism would ensure that only those teachers would be selected who would be best suited to impart education in Madrasah Education System. The State Legislature has taken care to see that the composition of the Commission would ensure compatability of the teachers who would be selected to impart education in Madrasah Education System, which is also emphasized in the Statement of Objects and Reasons. [Para 52] [304-D-F]

9. It is true that the recommendations or nominations of teachers made by the Commission are otherwise binding on the Managing Committees of concerned Madrasahs, but, in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is open to the Managing Committee of the concerned Madrasah to bring it to the notice of the Commission for removal of such error. The concept of ‘error’ as contemplated must also include cases where the concerned Madrasah could appoint a better qualified teacher than the one nominated by the Commission. If any such error is pointed out, the Commission will certainly have to rectify and remove the error. The further protection is afforded by Section 12 of the Commission Act, under which the concerned Madrasah could be within its rights to refuse to issue appointment letter to the candidate recommended by the Commission if any better qualified candidate is otherwise available with the managing committee of the concerned Madrasah. Such refusal may also come within the expression ‘any reasonable ground’ as contemplated in Section 12(i) of the Act. The legislature has thus taken due care that the interest of a minority institution will always be taken care of by ensuring that i) in normal circumstances, the best qualified and suitable candidates will be nominated by the Commission; ii) and in case there be any error on part of the Commission, the concerned Managing Committee could not only point out the error which would then be rectified by the Commission but the Managing Committee may also be within its rights in terms of Section 12(i) to refuse the nomination on a reasonable ground. [Para 53] [304-F-H; 305-A-C]

10. The regime put in place by the State legislature thus ensures that the Commission comprising of experts in the field would screen the talent all across the State; will adopt a fair selection procedure and select the best available talent purely on merit basis; and even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions. The provisions satisfy the test as culled out in the decision of this Court in *TMA Pai Foundation case. [Para 54] [305-D]

11. Going by the principles laid down in the decision in *TMA Pai Foundation case, the concerned provisions cannot, therefore, be said to be transgressing the rights of the minority institutions. The selection of the teachers and their nomination by the Commission constituted under the provisions of the Commission Act would satisfy the national interest as well as the interest of the minority educational institutions and said provisions are not violative of the rights of the minority educational institutions. Therefore, sections 8, 10, 11 and 12 of the Commission Act are valid and constitutional. [Paras 55 and 57] [305-E-F; 306-E]

12. All nominations made by the Commission in pursuance of the provisions of the Commission Act are valid and operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder. [Para 58] [306-F-G]

*TMA Pai Foundation and others v. State of Karnataka and others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR

587 ; Re: The Kerala Education Bill 1957 [1959] SCR

995 ; Lily Kurian v. Sr. Lewina and Others (1979) 2 SCC 124 : [1979] 1 SCR 820; St. Stephen’s College v. University of Delhi (1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121;**P.A.Inamdar and others v. State of

Maharashtra and others (2005) 6 SCC 537 : [2005]

2 Suppl. SCR 603 – followed.

The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Another (1975) 2 SCC 283 – relied on.

Sindhi Education Society and another v. Chief Secretary, Government of NCT of Delhi and others (2010) 8 SCC

49 : [2010] 8 SCR 81 ; Chandana Das (Malakar) v. State of West Bengal and others (2015) 12 SCC 140 ; Brahmo Samaj Education Society v. State of West Bengal (2004) 6 SCC 224 : [2204] 2 Suppl. SCR 214

– distinguished.

State of Kerala, etc v. Very Rev. Mother Provincial, etc (1970) 2 SCC 417 : [1971] 1 SCR 734 ; Secretary, Malankara Syrian Catholic v. T. Jose and others (2007)

1 SCC 386 : [2006] 9 Suppl. SCR 644 ; Rev. Sidhajbhai Sabhai and Others v. State of Bombay and Another [1963] 3 SCR 837 ; Rev. Father W. Proost and Others. v. the State of Bihar and Others AIR 1969 SC 465 ; [1969] 2 SCR 73 ; D.A.V. College, etc. v. State of Punjab and Others [1971] Suppl. SCR 688 ; All Saints High School, Hyderabad and Others v. Government of Andhra Pradesh and Others (1980) 2 SCC 478 : [1980]

2 SCR 924 ; Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College, Jamalia and others (1990) 1 SCC 428 : [1989] 2 Suppl. SCR 399 ; Board of Secondary Education and Teachers Training v. Jt. Director of Public Instructions, Sagar and others (1998) 8 SCC 555 ; N. Ammad v. Manager, Emjay High School and others (1998) 6 SCC 674 : [1998] 1 Suppl. SCR 453 ; Kanya Junior High School, Bal Vidya Mandir, Etah,U.P. v. U.P. Basic Shiksha Parishad, Allahabd, U.P. and others (2006) 11 SCC 92 : [2006]

4 Suppl. SCR 813 – referred to.